Opinion FlashFebruary 3, 2003Volume 9 — Number 019 Following this index are summaries of each case, including its name, first paragraph, author's name, and the names of attorneys for the parties of each opinion. This Issue (IN THIS ORDER):
TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password, you can look it up on-line at http://www.tba.org/getpassword.mgi . If you are a TBA member, but do not have a username and password, you can receive one online at http://www.tba.org/signup.mgi. Here's how you can obtain full-text version. Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document. Howard H. Vogel SUPREME COURT DISCRETIONARY APPEALS Court:TSC http://www.tba.org/tba_files/TSC/CERTLIST_0203.wpd WILLIAM W. DAVIS, JR., v. KAREN A. DAVIS Court:TCA Attorneys: William W. Davis, Knoxville, Tennessee, for Appellant. Brent R. Watson, Knoxville, Tennessee, for Appellee. Judge: FRANKS First Paragraph: In divorce action the Trial Court ordered husband to pay alimony and ordered division of marital property. The Judgment is affirmed as modified. http://www.tba.org/tba_files/TCA/davisw.wpd IN THE MATTER OF: S. M. S., D.O.B. 10-28-91 Court:TCA Attorneys: Kim G. Sims, Memphis, TN, for Appellant Anastacia Frost, Memphis, TN, pro se Judge: HIGHERS First Paragraph: This appeal arises from a child custody proceeding. The juvenile court granted custody to the mother. This appeal ensued. For the following reasons, we remand for further findings of fact. http://www.tba.org/tba_files/TCA/Frostd.wpd
LEAH MICHELLE MILLER, et al. v. GARY RAY HILL, et al.
Court:TCA
Attorneys:
James M. Crain, Knoxville, Tennessee, for the appellants, Leah
Michelle Miller, by next friend, Brenda Gail Miller, Robert G. Miller
and Brenda Gail Miller, individually.
Robert A. Crawford and Laura Bradley Myers, Knoxville, Tennessee, for
the appellees, Gary Boyd Hill and Martha Hill.
Judge: SUSANO
First Paragraph:
Leah Michelle Miller, a minor, was injured while attempting to
dismount a trampoline in the yard of a two-story duplex. Her parents,
Robert G. Miller and Brenda Gail Miller ("the plaintiffs"), rented the
lower unit of the duplex. The Millers sued their landlords, Gary Boyd
Hill and Martha Hill ("the Landlords"). They also named as defendants
the occupants of the upstairs unit, Steve Cooper and Tanya Caldwell.
The suit against these latter two defendants was based upon their
ownership of the trampoline. The Landlords moved for summary
judgment. They essentially argued that they owed no duty of care to
the plaintiffs or their child with respect to the trampoline. The
trial court granted the motion and entered a final judgment pursuant
to Tenn. R. Civ. P. 54.02. We affirm.
http://www.tba.org/tba_files/TCA/MillerLM.wpd
STATE OF TENNESSEE, ON RELATION OF THE COMMISSIONER, DEPARTMENT OF TRANSPORTATION, FOR AND ON BEHALF OF SAID DEPARTMENT v. DEBORAH GAY RAINEY Court:TCA Attorneys: Charles E. Waldman, Memphis, TN, for Appellant Paul G. Summers, Attorney General & Reporter, Nashville, TN; Larry M. Teague, Deputy Attorney General, Jackson, TN, for Appellee Judge: First Paragraph: This appeal arises from a condemnation proceeding. The trial court awarded the Appellant $38, 040.00 as the fair market value of the property taken and zero dollars for incidental damages to the remaining property. Appellant raises a single issue on appeal. For the following reasons, we dismiss the appeal. http://www.tba.org/tba_files/TCA/Raneyd.wpd EDDIE WILLIAMS, JR. v. TENNESSEE DEPARTMENT OF CORRECTIONS, et al. Court:TCA Attorneys: Judge: Eddie Williams, Jr., pro se. No brief filed by the Appellees. First Paragraph: In this appeal from the Chancery Court for Morgan County the Petitioner/Appellant, Eddie Williams, Jr., contends that the Trial Court erred in dismissing his petition for writ of certiorari for failure to appear and prosecute. We vacate the judgment of the Trial Court and remand. http://www.tba.org/tba_files/TCA/williamsed.wpd BUFORD BARRETT v. STATE OF TENNESSEE Court:TCCA Attorneys: Paul Simpson, Selmer, Tennessee, for the appellant, Buford Barrett. Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Jerry W. Norwood, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The petitioner, Buford Barrett, appeals the McNairy County Circuit Court's denial of his petition for post-conviction relief from his conviction for rape of a child and resulting twenty-year sentence. He claims that he received the ineffective assistance of counsel because his trial attorney (1) refused to let him testify at trial; (2) failed to subpoena his cousin, who could have testified that the petitioner was not present when the alleged crime occurred; (3) failed to request a DNA test for the victim; and (4) failed to investigate the facts surrounding a statement that his wife gave to the police in which she admitted that she had sexually abused the victim. In addition, the petitioner contends that the cumulative effect of his attorney's deficiencies prevented him from receiving a fair trial. We affirm the trial court's denial of the petition. http://www.tba.org/tba_files/TCCA/barrettb.wpd STATE OF TENNESSEE v. SAMMY D. CHILDERS Court:TCCA Attorneys: Dennis W. Plunk, Savannah, Tennessee, for the Appellant, Sammy D. Childers. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; P. Robin Dixon, Jr., Assistant Attorney General; G. Robert Radford, District Attorney General; and John W. Overton, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Sammy D. Childers, appeals his jury convictions for two counts of aggravated assault. Following these convictions, the Circuit Court of Hardin County sentenced Childers to concurrent sentences of five years, with ninety days to be served in confinement, followed by four years and nine months of supervised probation. On appeal, Childers raises one issue for our review; whether he is entitled to a new trial because of alleged juror misconduct. After reviewing the record before us, we find this issue to be without merit and affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Childers.wpd STATE OF TENNESSEE v. CHAD CRABTREE Court:TCCA Attorneys: Donna Robinson Miller (on appeal) and Myrlene Marsa (at trial), Assistant District Public Defenders, for the appellant, Chad Crabtree. Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III, Assistant Attorney General; and Yolanda Mitchell and Barry A. Steelman, Assistant District Attorneys General, for the appellee, the State of Tennessee. Judge: WADE First Paragraph: The defendant, Chad Crabtree, was convicted of three counts of rape of a child, Class A felonies. The trial court imposed concurrent twenty-five-year sentences. In this appeal, the defendant asserts (1) that the trial court erred by denying his access to certain records regarding the victim and the lead investigator; (2) that the evidence was insufficient to support one of his convictions; (3) that the trial court was not impartial; (4) that a witness for the state improperly bolstered the credibility of the victim; and (5) that the sentence was excessive. The judgments of the trial court are affirmed. http://www.tba.org/tba_files/TCCA/Crabtree.wpd STATE OF TENNESSEE v. CHARLES E. DELAPP, JR., A.K.A. CHARLES E. JACKSON, JR. Court:TCCA Attorneys: Gary F. Antrican, District Public Defender; and Julie K. Pillow, Assistant District Public Defender, for the appellant, Charles E. Delapp, Jr., a.k.a. Charles E. Jackson, Jr. Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Tracey A. Brewer, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Charles E. Delapp, Jr., a.k.a. Charles E. Jackson, Jr., appeals as of right his conviction by a Lauderdale County Circuit Court jury for reckless aggravated assault, a Class D felony, and the resulting five-year, six-month sentence. He contends (1) that the evidence is insufficient to support his conviction and (2) that his sentence is excessive. We affirm the trial court's judgment of conviction. http://www.tba.org/tba_files/TCCA/delappc.wpd JAMES E. JACKSON v. STATE OF TENNESSEE Court:TCCA Attorneys: Dwight E. Scott, Nashville, Tennessee, for the appellant, James E. Jackson. Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Jon P. Seaborg, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The petitioner, James E. Jackson, appeals the trial court's denial of his petitions for writ of error coram nobis and post-conviction relief from his conviction for first degree murder. In regard to the petition for writ of error coram nobis, the petitioner claims that newly discovered evidence entitles him to a new trial. In regard to the petition for post-conviction relief, he contends that he received the ineffective assistance of counsel because his trial attorney failed to call certain witnesses to testify and did not investigate and present a diminished capacity defense. We affirm the trial court's denial of the petitions. http://www.tba.org/tba_files/TCCA/jacksonja.wpd STATE OF TENNESSEE v. CLAZELLE JENNINGS Court:TCCA Attorneys: Robert B. Gaia, Memphis, Tennessee, for the appellant, Clazelle Jennings. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; and Stephen Patrick Hall, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: A Shelby County jury convicted the defendant, Clazelle Jennings, of aggravated robbery and two counts of aggravated assault. The trial court sentenced him to concurrent sentences of ten years for aggravated robbery and four years for each of the aggravated assaults. On appeal, the defendant presents the following issues: (1) whether the trial court erred in denying his motion to suppress his statements to police; (2) whether the evidence was sufficient to support the convictions; (3) whether the convictions for aggravated robbery and aggravated assault upon the same victim violate double jeopardy; and (4) whether the sentence is excessive. Upon review of the record and the applicable law, we reverse and dismiss one of the aggravated assault convictions due to a double jeopardy violation. We remand for a clerical correction of the remaining aggravated assault judgment. We affirm in all other respects. http://www.tba.org/tba_files/TCCA/jenningsc.wpd STATE OF TENNESSEE v. DONALD JOHNSON, JR. Court:TCCA Attorneys: A.C. Wharton, Jr., Public Defender; W. Mark Ward, Assistant Public Defender (on appeal); and Phyllis L. Aluko and Michael J. Johnson, Assistant Public Defenders (at trial), for the appellant, Donald Johnson, Jr. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; and Charles W. Bell, Jr. and Rosemary Andrews, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: A Shelby County jury convicted the defendant, Donald Johnson, Jr., of first degree murder in perpetration of robbery, and the trial court sentenced him to life. On appeal, this court vacated the judgment of the trial court and remanded for findings relating to the motion to suppress the defendant's statements to police officers. Upon remand, the trial court made additional findings and again denied the motion. Upon reviewing the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/johnsond.wpd JAVONNI JONES v. STATE OF TENNESSEE Court:TCCA Attorneys: Roger Eric Nell, District Public Defender; and Fred W. Love, Assistant District Public Defender, for the appellant, Javonni Jones. Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Lance A. Baker, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The petitioner, Javonni Jones, appeals the dismissal of his petition for post-conviction relief as being barred by the statute of limitations. We affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/jonesjavo.wpd STATE OF TENNESSEE v. KENNETH KING Court:TCCA Attorneys: Robert Wilson Jones, Shelby County Public Defender; W. Mark Ward, Assistant Public Defender; Michael Johnson, Assistant Public Defender; and Brent Walker, Assistant Public Defender, Memphis, Tennessee, for the appellant, Kenneth King. Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney General; William L. Gibbons, District Attorney General; and Steve Jones, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Defendant, Kenneth King, was convicted of burglary of a building and was sentenced to twelve years in the Tennessee Department of Correction as a career offender. Defendant now appeals his conviction alleging that the trial court erred in refusing to grant a mental evaluation prior to trial to determine Defendant's competency to stand trial. After a review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/KingKen.wpd STATE OF TENNESSEE v. CLARK DOUGLAS LIVELY Court:TCCA Attorneys: Robert Wilson Jones, Shelby County Public Defender; W. Mark Ward, Assistant Public Defender; Michael Johnson, Assistant Public Defender; and Brent Walker, Assistant Public Defender, Memphis, Tennessee, for the appellant, Kenneth King. Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney General; William L. Gibbons, District Attorney General; and Steve Jones, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: Michael J. Flanagan, Nashville, Tennessee, for the appellant, Clark Douglas Lively. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Dan M. Alsobrooks, District Attorney General; and Robert S. Wilson, Assistant District Attorney General, for the appellee, State of Tennessee. http://www.tba.org/tba_files/TCCA/lively.wpd STATE OF TENNESSEE v. BYRON LOOPER Court:TCCA Attorneys: John E. Herbison, Nashville, Tennessee (on appeal); McCracken Poston, Chattanooga, Tennessee (at trial); and Ron Cordova, Newport Beach, California (at trial), for the appellant, Byron Looper. Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General; William E. Gibson, District Attorney General; and David A. Patterson and Anthony J. Craighead, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant, Byron Looper, was convicted of first degree murder and sentenced to life imprisonment without the possibility of parole. He timely appealed, presenting as issues: (1) the trial court erred in excluding the testimony of witnesses who would have testified as to his location following the homicide, violating his right to due process; (2) the trial court erred in keeping under seal the psychological records of one of the State's witnesses; and (3) the evidence did not support application of the aggravating factor that the homicide was committed because the victim was a state official. Following our review, we affirm the conviction and the imposition of life without the possibility of parole. http://www.tba.org/tba_files/TCCA/looperb.wpd STATE OF TENNESSEE v. SHIRLEY MASON Court:TCCA Attorneys: Donna Leigh Hargrove, District Public Defender; Andrew Jackson Dearing, III, Assistant District Public Defender (at hearing and on appeal); and Merrilyn Feirman, Nashville, Tennessee (on appeal), for the appellant, Shirley Mason. Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney General; W. Michael McCown, District Attorney General; and Michael D. Randles, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant pled guilty to delivery of cocaine under .5 grams. The trial court imposed a Range II eight-year sentence in the Department of Correction. The defendant appeals her sentence, arguing it was excessive and she should have received alternative sentencing. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/masonsh.wpd STATE OF TENNESSEE v. JAMES ANTHONY McCURRY Court:TCCA Attorneys: Stephen P. Spracher, Assistant Public Defender, Jackson, Tennessee, for the appellant, James Anthony McCurry. Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and Jody S. Pickens, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant pled guilty to possession of cocaine with intent to sell; reckless driving; two counts of driving with a suspended, cancelled, or revoked license; possession of cocaine; aggravated assault; and felony evading arrest. The trial court sentenced him to an effective sentence of twelve years and ordered him to serve his sentence on probation. The Defendant's probation officer subsequently filed a probation violation report, and following a probation revocation hearing, the trial court revoked the Defendant's probation. In this appeal, the Defendant argues that the trial court improperly relied on rebuttal testimony as substantive evidence at the hearing and thus that the court improperly revoked his probation. Finding no error by the trial court, we affirm the trial court's decision to revoke probation in this case. http://www.tba.org/tba_files/TCCA/mccurryja.wpd STATE OF TENNESSEE v. DON WOODY MCGOWAN Court:TCCA Attorneys: Philip A. Condra, District Public Defender, Jasper, Tennessee, for the appellant, Don Woody McGowan. Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; J. Michael Taylor, District Attorney General; and Sherry Gouger, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant was indicted for driving on a revoked license, driving on a revoked license second offense, evading arrest, and reckless driving. After the State presented its proof at trial, the trial court entered judgments of acquittal for the charges of evading arrest and reckless driving. At the conclusion of the trial, a Marion County jury convicted the Defendant of driving on a revoked license and assessed a fine of $500. The Defendant waived a jury as to the second offense driving on a revoked license, and the trial court found him guilty. The trial court sentenced the Defendant to eleven months and twenty-nine days for second offense driving on a revoked license and ordered that the sentence be served on probation except for thirty days to be served in the county jail. The Defendant now appeals, arguing that the trial court erred by admitting into evidence a Tennessee Department of Safety driving record as proof of the Defendant's prior conviction for driving on a revoked license. Finding no error, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/mcgowandw.wpd DONALD RAY MIDDLEBROOKS v. STATE OF TENNESSEE Court:TCCA Judge: RILEY ORDER DENYING PETITION TO REHEAR http://www.tba.org/tba_files/TCCA/middlebro_rh.wpd STATE OF TENNESSEE v. FRANKIE DONALD RELEFORD Court:TCCA Attorneys: Joseph F. Harrison, Blountville, Tennessee, for the appellant, Frankie Donald Releford. Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Joseph E. Perrin, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Frankie Donald Releford, appeals his effective eight-year sentence of incarceration. The Sullivan County Criminal Court sentenced him to confinement following his guilty pleas to possession of more than .5 grams of cocaine for resale, a Class B felony; possession of a handgun by a convicted felon, a Class E felony; possession of dihydrocodeinone, a Class A misdemeanor; possession of marijuana, a Class A misdemeanor; possession of drug paraphernalia, a Class A misdemeanor; and theft of property valued under $500, a Class A misdemeanor. The defendant contests the manner of service of his sentences, contending that the trial court erroneously denied him probation or an alternative sentence. We affirm the sentences imposed by the trial court. http://www.tba.org/tba_files/TCCA/releford2.wpd STATE OF TENNESSEE v. TIMOTHY MAURICE REYNOLDS Court:TCCA Attorneys: Gregory D. Smith, Clarksville, Tennessee (on appeal); Claudia S. Jack, District Public Defender; and Robert H. Stovall, Jr., Assistant District Public Defender, for the appellant, Timothy Maurice Reynolds. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Mike Bottoms, District Attorney General; and Richard H. Dunavant and Patrick S. Butler, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: A Giles County jury convicted the defendant, Timothy Maurice Reynolds, of aggravated robbery, and the trial court sentenced the defendant to twenty years as a Range II multiple offender. On direct appeal, the defendant raises the following issues: (1) whether the evidence was sufficient to support the conviction for aggravated robbery; (2) whether the trial court erred in prohibiting defense counsel, during cross-examination and closing arguments, from referring to the United States Attorney General's comments on eyewitness identification; and (3) whether the trial court erred in finding the defendant to be a Range II multiple offender. We affirm the conviction; however, because essential exhibits relating to sentencing are missing from the record without fault of the parties, we remand for resentencing. http://www.tba.org/tba_files/TCCA/reynoldsti.wpd STATE OF TENNESSEE v. CLEMMIE RHYAN Court:TCCA Attorneys: A C Wharton, Jr., District Public Defender; W. Mark Ward, Assistant District Public Defender (on appeal); and Gwendolyn Rooks, Assistant District Public Defender (at trial), for the appellant, Clemmie Rhyan. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; William L. Gibbons, District Attorney General; and Charles W. Bell, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: A Shelby County Criminal Court jury convicted the defendant, Clemmie Rhyan, of second degree murder, a Class A felony, and the trial court sentenced him as a Range I, violent offender to twenty- two years in the Department of Correction (DOC). The defendant appeals, claiming (1) that the evidence is insufficient to support his conviction; (2) that the trial court erred by refusing to instruct the jury on self-defense; and (3) that his sentence is excessive. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/rhyan.wpd STATE OF TENNESSEE v. ANTHONY TONY SANDY Court:TCCA Attorneys: Robert D. Massey, Pulaski, Tennessee, for the appellant, Anthony Tony Sanders. Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney General; T. Michel Bottoms, District Attorney General; and James G. White, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Defendant, Anthony "Tony" Sandy, was indicted by the Lawrence County Grand Jury for first degree murder. Defendant was convicted by a jury of the lesser-included offense of voluntary manslaughter. The trial court sentenced Defendant, as a Range I standard offender, to serve four years and six months in the Tennessee Department of Correction and imposed a fine of $10,000, which was assessed by the jury. In this appeal as of right, Defendant argues that the evidence at trial was insufficient to support a finding of guilt beyond a reasonable doubt and that the trial court erred in sentencing Defendant. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Sandya.wpd STATE OF TENNESSEE v. REGINOL L. WATERS Court:TCCA Attorneys: Ross E. Alderman, Public Defender; Jeffrey A. DeVasher, Assistant Public Defender (on appeal); and J. Michael Engle, Assistant Public Defender (at trial), for the appellant, Reginol L. Waters. Paul G. Summers, Attorney General and Reporter; Christine M. Lapps, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Brian Keith Holmgren, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: A Davidson County jury convicted the defendant, Reginol L. Waters, of two counts of aggravated rape, one count of aggravated robbery, and one count of aggravated burglary. The trial court sentenced him as a Range I offender to twenty-three years for the first count of aggravated rape, twenty-five years for the second count of aggravated rape, ten years for aggravated robbery, and as a Range II offender to ten years for aggravated burglary. The trial court further ordered the two sentences for aggravated rape and the sentence for aggravated burglary be served consecutively and the sentence for aggravated robbery be served concurrently, for an effective sentence of fifty-eight years. In this appeal of right, the defendant raises the following issues: (1) whether the trial court erred in denying the motion to suppress testimony regarding the "showup" identification of the defendant; (2) whether the trial court erred in denying the motion to suppress the defendant's statements to the police; (3) whether the trial court erred in admitting the tape recording of the victim's telephone call to the police; (4) whether the state failed to establish a proper chain of custody for evidence found during a search of the defendant's vehicle; (5) whether the two convictions for aggravated rape should be merged; (6) whether the conviction for aggravated burglary violates due process because it was incidental to the offenses of aggravated rape and aggravated robbery; and (7) whether the sentences are excessive. Upon review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/watersr.wpd STATE OF TENNESSEE v. MARCUS WEBB Court:TCCA Attorneys: W. Gary Ball and Jane Sturdivant (at trial), and William D. Massey and C. Michael Robbins (on appeal), Memphis, Tennessee, for the appellant, Marcus Webb. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; William L. Gibbons, District Attorney General; and Glen C. Baity, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant, Marcus Webb, was convicted by a Shelby County jury of two counts of aggravated robbery. On appeal, he challenges the sufficiency of the evidence and the trial court's jury instruction defining the mens rea of "knowing." We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/webbms.wpd PLEASE FORWARD THIS E-MAIL! GET A FULL-TEXT COPY OF AN OPINION! JOIN THE TENNESSEE BAR ASSOCIATION! SUBSCRIBE TO OPINION FLASH! UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT! 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